This year's conference has been a big success. More than 250 attendees and faculty, and -- very importantly -- nearly 100 first-time attendees. This bodes well both for the Conference and the eminent domain and property bar.

A big thank you to our ALI-CLE Program Attorney Amy Weinberg for undertaking the planning and execution of this very good conference.

We will have a record attendance (with over 100 first-time attendees) and the conference hotel has informed us that we can fit no more people in the meeting rooms. We cannot remember this happening before, but it tells us that we will have an energizing and exciting conference.

Thank you to all of you who signed up and are coming or joining in online for the webcast -- we'll see you soon at the "four corners of the law."

And stay tuned: for 2019, we've already picked the venue (hint: west coast), and we are at a site which can accommodate as many attendees as can join us. We will make the formal announcement of the dates and location of the 2019 Conference in Charleston next week.

After we do, please make your plans and don't delay and risk getting left out!

Do not miss this popular conference! Intended for all eminent domain and land use practitioners, both experienced and those new to the practice. You can even customize the unique curriculum to work for you: freely go between the Advanced and 101 tracks, with additional tracks for Practice and Substantive law.

With a faculty of national experts who offer both condemnor and property owner perspectives, this is the big program, and the one you don't want to miss.

Recognized and experienced professionals representing the diverse stakeholders in these cases will discuss the issues hitting your desk today or in the future, including:

Overlap of condemnation and regulatory takings: Murr and other blurred lines

But if you haven't reserved your space yet, don't despair. The conference organizers have made arrangements at a hotel that is very nearby, the Marriott Courtyard, for a special conference rate. That hotel is just across the park from the Francis Marion. ALI is also making arrangements for conference room blocks in two other nearby hotels. Details on all of these alternatives are posted here.

One more thing that we didn't mention in our preview: there will also be a special sneak preview of the movie about Kelo v. City of New London, Little Pink House. If you joined us in Austin in 2016, you’ll remember that we spoke with Ted Balaker, the film's producer about the movie, which was then being shot. It is now complete, and we're privileged to be getting a before-the-public screening of the film on Friday evening of the Conference.

So plan on joining us in Charleston, January 25-27, 2018. Sign up now!

November 2, 2017

Update: our colleague Bryan Wenter has his take on one of the cases denied review here ("U.S. Supreme Court Again Declines to Consider Important Property Rights Issue Regarding the Unconstitutional Conditions Doctrine") ("Because the current composition of the U.S. Supreme Court leans ideologically conservative by any traditional measure and it takes only four of nine Justices to grant certiorari, on the surface it is surprising that the Court has yet to take up a case, such as CBIA or 616 Croft Ave., that would finally resolve this distinction between sweeping legislative takings and particularized administrative takings. The surprise is enhanced to a degree by the fact that the Court considered both cases in conference four times, which suggests a serious interest in the issue.").

* * * *

To bring you up to speed on cases of interest in the Supreme Court's cert pipeline that we've been following, the short story is that none of them were granted review. Here's a list:

What to make, if anything, from these denials in cases that looked pretty good? No real vehicle problems, and issues that are primed for the Court to take up: yet cert denied, denied, denied...and denied.

There are many ways to read the tea leaves, including the usual "the Court just wasn't interested." But we have speculated that these denials are not something to necessarily despair about, and are more a sign of inopportune timing and the Justices who are supportive of property rights wanting to keep their powder dry for a time when they have a more solid majority. We base our speculation on two cases.

First, Murr v. Wisconsin, a decision where Justice Kennedy authored a perplexing majority opinion that seems to satisfy no one except those who simply think regulatory takings case should always be decided against the property owner. With Justice Kennedy possibly controlling the majority in property cases, perhaps the risk of another Murr was simply too much, and it was better for the pro-property Justices to vote to deny cert than risk it.

We paid a visit to Charleston recently, the venue for our January 2018 conference, to scout it out. We can report that we're going to have a great time, for sure. When we polled you last year, you selected Charleston as your first choice (a new city for the Conference), and it is shaping up to be a very good selection. In addition to the usual lineup of CLE programming, there are a ton of things to see and do in the area. We recorded a short video down at the "four corners of law" (the intersection of Meeting Street and Broad Street), to give you a preview (the weather was much better than in our 2016 preview video, too).

As an added exclusive bonus, there will also be a special sneak preview of the movie about Kelo v. City of New London, Little Pink House. If you joined us in Austin in 2016, you’ll remember that we spoke with Ted Balaker, the film's producer about the movie, which was then being shot. It is now complete, and we're privileged to be getting a before-the-public screening of the film on Friday evening of the Conference.

So plan on joining us in Charleston, January 25-27, 2018. See you there.

October 13, 2017

University of Hawaii Law School Professor David Callies last night was presented with William and Mary Law School's Brigham-Kanner Property Rights Prize which is "presented annually to a scholar, practitioner or jurist whose work affirms the fundamental importance of property rights."

As W&M notes about Professor Callies, a "prolific scholar whose work explores land use, property, and state and local government law, Callies has lectured around the world and authored or collaborated on about 90 articles and 20 books. He has been a member of the prestigious American Law Institute since 1990 and is the Benjamin A. Kudo Professor of Law at the University of Hawaiʻi at Mānoa. Prior to entering academia, he was an attorney in private practice and an assistant state’s attorney."

We're spending today in a series of panels which explore and build upon Professor Callies' lifetime of work. Michael Berger, a past Prize winner, kicked off the day on the panel "The Future of Land Regulation and a Tribute to David Callies," with a discussion of how Callies went from being the author of The Taking Issue (which Professor Gideon Kanner has referred to as a "failed propaganda screed") in the early part of his career, to a scholar who plainly recognizes the critical role of property rights and the regulatory taking doctrine.

Callies joins a prestigious list of prior Prize winners, a list that has reached 14, and now requires two brass plaques at the William and Mary Law School, just outside Classroom 1.

I spoke on the first panel of the day, the above-mentioned "The Future of Land Regulation and a Tribute to David Callies," along with Michael Berger, Professor James Ely (also a prior winner), and Pepperdine Law School Professor Shelley Saxer. Here are links to the cases and other materials I spoke about, or that are in my written materials:

We are putting the agenda and faculty together for the Conference (which, as always, will include the Condemnation 101 track for those new to eminent domain practice, or who could use a refresher course). There's a lot going on in our field, and we will put out the details and ALI will update the site once we finalize everything.

There's a benefit to early registration: this year's conference in San Diego was at capacity, and signing up now will both reserve your spot, and get a discounted registration fee.

July 6, 2017

Winter storms damaged a seawall which protected a blufftop, oceanfront home. The owners, not surprisingly, wanted to rebuild the wall to protect their home. The Coastal Commission, as is its wont, saw this as an opportunity to extract some goodies from the owners. So it granted a limited-term permit to rebuild the wall, conditioned on the owners not repairing a stairway leading from the top of the bluff to the private beach:

Ultimately, the Commission approved a coastal development permit allowing seawall demolition and reconstruction, with the addition of midbluff geogrid protection below Lynch‟s home. The permit was subject to several conditions, three of which are at issue here. Special condition No. 1(a) prohibits reconstruction of the lower stairway. Special condition No. 2 provides that the seawall permit will expire in 20 years and prohibits future blufftop redevelopment from relying on the seawall as a source of geologic stability or protection. Special condition No. 3 requires that, before expiration of the 20-year period, plaintiffs must apply for a new permit to remove the seawall, change its size or configuration, or extend the authorization period.

The owners recorded these restrictions, as the were required to do, and "[a]round the same time," they objected to the conditions. While this case was being decided, they rebuilt the seawall.

In Lynch v. California Coastal Commission, No. S221980 (July 6, 2017), the unanimous California Supreme Court held that the owners waived their right to challenge the conditions, because they accepted the benefit of the permit:

In the land use context, a landowner may not challenge a permit condition if he has acquiesced to it either by specific agreement, or by failure to challenge the condition while accepting the benefits afforded by the permit. Generally, challenges to allegedly unlawful conditions must be litigated in administrative mandate proceedings.

Slip op. at 5-6 (emphasis added) (citations omitted).

Why the court qualified the above statement with "in the land use context," the opinion does not explain. Is this not the same in other contexts? If not, all we can figure is that the court views land use regulations as some sort of super-duper exercise of government's police powers, or that property rights are not on equal footing with other civil rights.

Does this mean that in other contexts that if you accept a permit to exercise your rights, you can accept and challenge simultaneously? For example, what if a city says "here’s your parade permit, granted only on the condition that you don’t speak ill of Donald Trump." So if you hold your parade despite this unconstitutional condition, have you waived your free speech challenge under Lynch, or does the italicized limitation on the holding show that land use regs are different in the California court's view?

In general, permit holders are obliged to accept the burdens of a permit along with its benefits. (See Sports Arenas Properties, Inc. v. City of San Diego (1985) 40 Cal.3d 808, 815.) This rule stems from the equitable maxim, “He who takes the benefit must bear the burden.” (Civ. Code, § 3521.) Plaintiffs obtained all the benefits of their permit when they built the seawall. They cannot now be heard to complain of its burdens.

Slip op. at 7.

The court rejected the owners' arguments that they might lose their home was a reason to not apply the general waiver rule. We can't make exceptions to legislative acts (referring to the fact that the California legislature has, in the past, allowed simultaneous challenge to allegedly illegal exactions, even though the owner accepted a permit), that's not our role as a court. "If such an expansion is needed, the Legislature is the appropriate body to create it." Slip op. at 9.

Besides, "[a]n exception allowing applicants to challenge a permit‟s restrictions after taking all of its benefits would change the dynamics of permit negotiations and would foster litigation." Slip op. at 9. All we can say to that is "wow." So it's cool that your home may fall into the ocean if you want to challenge this condition on your exercise of your constitutional rights, but hey, that's your problem or the legislature's problem, not ours. The court's role is to save local government from litigation.

We can't say we were surprised by this ruling -- it is California, after all -- but to have the opinion lay out the court's disregard for anything but government power so starkly, with nary a nod towards the predicament that the owners found themselves in, is still shocking.

June 16, 2017

Here's the audio recording of the talk we gave to the ABA Section of State and Local Government Law's Land Use Committee earlier today. (Some of you may note that in the intro we say the talk was on "June 17," but since that's tomorrow, we assume you understand that is just an error.)

The links to the cases and materials we mentioned in the talk are posted here.

June 12, 2017

Mark your calendars for this Friday, June 16, 2017, at 2:00 p.m. Eastern Time for a free talk we'll be giving, "Regulatory Takings: Emerging Issues."

Yes, it's free, but there's a catch: this talk is sponsored by the ABA Section of State and Local Government Law's Land Use Committee, and you have to be a Section member (or be willing to join us). One of the benefits of being a member is that you can sign on to these bi-monthly calls and learn about the latest developments in the broad range of topics the Committee covers. Ping me if you want to sign up.

And what's the deal with the graphic above? Well, starting in August 2017, I'll be taking over as Chair of the Section (assuming my ABA colleagues do not come to their senses before then), and the big focus of the Chair is to lead the planning for the Section's two big yearly in-person conferences. For 2017-18, we'll be meeting in Savannah in October, and Detroit in the Spring. More on these conferences here. We've already secured the dates and venues, and the agenda and faculty planning is well underway. I invite you to come join us -- for my reasons why I am active in the ABA, go here.

As you can see, the room was packed and standing room only. Here are the cases and issues I mentioned during my talk, "National Takings Trends, Hot Practice Areas, and Property Rights in the Age of Trump:"

There's a lot to digest in the 38 page opinion, and the 32 page concurring opinion, and we will allow you to read them for yourself. The key portion of the majority opinion, in our view, starts on page 33, which addresses the plaintiff's claims for standing under the Fifth Amendment. Starr argued that "the Government has a duty not to violate the Fifth Amendment's Takings Clause because the Fifth Amendment creates a 'special relationship' between AIG's shareholders and the Government. Starr does not cite any support for its submission that the Fifth Amendment's Takings Clause creates a Government 'duty.'" Slip op. at 33. Even if it did create a duty, the duty would run to the corporation, and not the shareholders.

In the end, the Federal Circuit concluded "while we have no reason to doubt that Starr was affected by the Government’s acquisition of AIG equity, Starr has not established any ground for direct standing under either federal or Delaware law. The alleged injuries to Starr are merely incidental to injuries to AIG, and any remedy would go to AIG, not Starr." Slip op. at 35.

Judge Wallach's concurring opinion, focused on the CFC's Tucker Act jurisdiction and the plaintiff's Article III standing, concluded that the CFC both lacked jurisdiction, and that Starr did not have standing. As we noted above, a long concurring opinion if you'd like the details of why.

Is this the last of this litigation? Given the players, we kind of doubt it.

May 2, 2017

Do you really need an excuse to visit Seattle? If you do, and want to earn some CLE credit while you're at it, check it out the brochure for the upcoming Eminent Domain seminar on May 18, 2017. This is a one-day program that focuses on the hot topics in our area of law. We'll be speaking about "Changes in National Public Policy" and the latest developments in eminent domain and takings law.

April 28, 2017

Remember back from Admin Law the notion of a "quasi-judicial" proceeding? That term always has bugged us, because, you know, it was used when an agency was sorta acting like a court (but also was sorta acting like a legislative body). Half full, half empty, take your pick.

The fact pattern presented in the Florida District Court of Appeals' opinion in Highland-in-the-Woods, LLC v. Polk County, No. 2D15-2801 (Apr. 28, 2017), involved the other side of that coin, an exaction the County argued was legislative even though imposed by an agency, and therefore off-limits to the exactions test of Nollan-Dolan-Koontz. (We think distinctions like this don't matter -- that whether or not its a legislature or an agency that is making a demand that in order to make use of your property, that you have to give up a constitutional right -- but we recognize that the issue hasn't been settled yet by the Supreme Court. There's a case up before the Court asking for resolution, but no decision yet.)

In Highland, the exaction was applicable to everyone, so we're going to use the term "sorta-legislative," because "quasi" is already being used for court-like actions. The trial court agreed with the County that Nollan-Dolan-Koontz didn't govern, "because this case does not involve an adjudicative decision." Slip op. at 6. The Court of Appeals, however, didn't agree:

We are not convinced that the County's decision regarding Highlands was only legislative in nature and not adjudicative. While the County ordinance requiring the connection to a reuse system may also apply to other subdivisions in the county, Highlands' permit was conditioned on the construction of the reuse improvements as well as its dedication of the improvements and land to the County.

Slip op. at 6-7 (footnote omitted). This was merely a sorta-legislative exaction, and therefore subject to the Nollan-Dolan-Koontz tests. Things seemed to be looking up for the property owner.

Unfortunately it didn't quite work out. The court held that the exaction met the tests. The County has a legitimate interest in new developments using reclaimed water. The court also held "[t]here is also a clear nexus between the legitimate state interest in conserving water and the permit conditions imposed by the County requiring the use of reclaimed water in the subdivision. The conditions require the installation and dedication of reuse improvements so that the future residents of the subdivision have access to reclaimed water and are not required to use potable water for residential irrigation." Slip op. at 8-9. The exaction was also roughly proportional:

Highlands applied for a permit to develop a subdivision consisting of sixty residential lots as well as areas. The County required the installation and dedication of reuse improvements the subdivision that will be used by the future residents for landscape irrigation. The conditions imposed by the County are directly related to the impact of the subdivision on the state's water resources and do not impermissibly reach beyond that impact. The fact that reclaimed water was not available for two years, requiring Highlands to use potable water to irrigate the landscaping in its common areas during that time, does not alter the conclusion that the reuse improvements have a rough proportionality to the impact of the development. The unavailability of reclaimed water for the common areas for a period of two years is insignificant in comparison to the availability of reclaimed water for the indefinite future of the entire sixty-lot subdivision.

Slip op. at 9. Having survived the Nollan-Dolan-Koontz test, the court upheld the exaction, and affirmed the dismissal of the plaintiff's inverse condemnation claim.

April 27, 2017

Here's the cert petition, recently filed, which asks the U.S. Supreme Court to review a decision of the North Carolina appellate courts. We say "appellate courts," because the decision being reviewed is one from the N.C. Court of Appeals, because the N.C. Supreme Court, after granting discretionary review, punted and dismissed the appeal after it was fully briefed and teed up for oral arguments.

What happened that cause the court to dismiss? Who really knows the internals, but the one thing we do know is that some members of the court changed due to a judicial election. We know the above because we were watching the case closely; we filed an amicus brief in support of the property owner in the N.C. Supreme Court, a brief that apparently didn't get read (not that amicus briefs get read all that frequently anyway, but you get our drift).

The case is a regulatory takings claim, and involves wet and dry sand beaches, public trust, and other favorite topics. The case arose because the N.C. Legislature by statute moved the "public trust" shoreline landward, and allowed the public to use what had formerly been private beach.

Here's the Question Presented:

Whether the Takings Clause permits a state to statutorily redefine an entire coastline of privately owned dry beach parcels as a “public trust” area open for public use, without just compensation?

We're going to follow this case, closely. Will we be also filing an amicus brief to make up for our (unread) N.C. Supreme Court amicus?

April 26, 2017

Here are the full set of petitioner-side amici briefs in 616 Croft Ave., LLC v. City of West Hollywood, No. 16-1137, the case which asks the Supreme Court to determine whether the Nollan-Dolan-Koontz exactions standards apply to conditions on development imposed by a legislature.

April 19, 2017

Here's the amicus brief filed yesterday by the National Federation of Independent Business Small Business Legal Center, joined by Owners' Counsel of America, in a case we've been following.

This case asks the Court to resolve a big outstanding issue: are legislatively-imposed exactions (however that term is defined) subject to the same high level of scrutiny under the Nollan-Dolan-Koontz test as are administratively-imposed exactions?

Our brief argues:

The Respondent, City of West Hollywood (“City”), forces property owners into the same unconstitutional dilemma which faced James and Marilyn Nollan, Florence Dolan, and Coy Koontz. Nollan v. California Coastal Comm’n., 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994); Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013). Specifically, the Petitioners were forced to choose between their fundamental rights to either (a) obtain just compensation or (b) develop and use their property. Indeed, they were foreclosed from obtaining a building permit without dedicating significant monetary assets to fund the City’s affordable housing program—i.e., private property that the City could not have taken out right. 616 Croft Ave., LLC v. City of W. Hollywood, 3 Cal. App. 5th 621, 625 (Cal. Ct. App. 2016) (“The City calculates the ‘in-lieu’ fee according to a schedule developed via resolution by the West Hollywood City Council…”).

While that permitting condition would have unquestionably been subject to a heightened standard of review, under Koontz, if imposed at the discretion of executive actors—the California courts held that a much more deferential standard should apply in this case solely because the condition was imposed by dictate of an enacted ordinance. 616 Croft Ave., 3 Cal. App. 5th at 625; Ehrlich v. City of Culver City, 12 Cal.4th 854, 860, 880–881 (Cal. 1996). But the constitutional injury is the same whether inflicted at the discretion of a lawless zoning commission or a legislative body indifferent to an individual’s constitutional rights. And the Takings Clause applies by the same terms regardless of which governmental entity has taken the lead in advancing confiscatory regulatory policies. See Lingle v. Chevron U.S.A., 544 U.S. 528 (2005); Stop the Beach Renourishment v. Flordia Dep’t. of Envtl. Prot., 560 U.S. 702 (2012).

March 24, 2017

Here's a more complete analysis of the recently-filed cert petition on whether legislatively-mandated permit conditions are exactions subject to Nollan/Dolan. From our colleague Bryan Wenter, former City Attorney for Walnut Creek, California. at Miller Starr Regalia's land use blog.

A City of West Hollywood ordinance requires that builders of a proposed 11-unit condominium pay a $540,393.28 “affordable housing fee” to subsidize the construction of low-cost housing elsewhere in the City. The ordinance imposes the fee automatically as a condition on the approval of a building permit, without any requirement that the City show that the projectcreates a need for low-cost housing.

The question presented is:

Whether a legislatively mandated permit condition is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Nollan v. California Coastal Commission, 483 U.S. 825 (1987).

January 30, 2017

When we previewed the 2017 ALI-CLE Eminent Domain & Land Valuation Litigation Conference while we were getting buried in the snow a couple of weeks ago,we promised there would be better weather in San Diego than much of the country was then experiencing. As you can see, we delivered.

We -- and by "we" I mean the faculty, the ALI-CLE staff, and the record number of attendees who came to San Diego -- also delivered on a really great conference. See our posts on several of the presentations here, here, here, and here for a flavor.

We also announced that the date and location for the 2018 Conference has been set, and the hotel and site have been booked:

Our final day was anchored, as usual, by Pacific Legal Foundation's Jim Burling, and property rights guru and advocate Michael Berger. Jim was his usual riveting self, and Michael supplied the insight to cases which only he can.

In case you are wondering, the above is the view from the dais, and no, I didn't bring a Spam calendar with me, it was a gift from a thoughtful New Jersey colleague who knows that Hawaii people love Spam. I will reserve comment on whether I love Spam, and simply say thank you for the calendar.

We finished the day strong with the National Forum, where audience members took the mic and shared their cases, issues, and results with the rest of us.

If you attended the Conference or served on the faculty, and have a web site or blog about issues other Conference participants should know about, send your URL my way, and I will post them up later this week. We should keep the conversation going.

January 26, 2017

Here are the links and references to the cases we spoke about today at our opening session on the national trends in eminent domain law at the 2017 ALI-CLE Eminent Domain and Land Valuation Litigation Conference in San Diego.

We again have a record attendance, and a good number of new attendees. If you aren't here now, we're sorry you didn't make it. But fear not: ALI-CLE has already set the date and location for the 2018 Conference: save the date on your calendars now -- January 25-27, 2018, Charleston, South Carolina, at the Francis Marion Hotel.

January 12, 2017

In GATRI, the court held that in the coastal zone, a county Community Plan (also known as a "General Plan" in some counties) is a binding land use regulation, and thus has the force and effect of law. (Outside the coastal zone, the CP/GP's don't actually control any land uses, and are general statements of long-term planning goals. The zoning, and the zoning alone, regulates the uses of land.)

But the state legislature in the Coastal Zone Management Act mandated a different result in the coastal zone and there, the planning also controls land use, as the court held in GATRI. Thus, in order to develop property in the coastal zone in accordance with the applicable zoning, the applicable CP/GP must also permit the use. This is know as "plan-zone consistency," and when the zoning and the planning are consistent, all is well.

The big question, however, is what happens when the zoning and the CP/GP are not consistent? First, we know that as a consequence of the inconsistency, the landowner cannot use her land in accordance with the zoning. Second, what, if any uses can be made of the property under the CP/GP designation? If none, this should set off your takings alarm bells: when a property is deprived by regulation of its economically beneficial uses, what is left but a Lucas wipeout?

As we detailed in our preview post, this is the issue confronting the Hawaii Supreme Court in a case argued last week, Leone v. County of Maui. There, the parcel is zoned "Hotel" (which permits residential use as a matter of right), but is designated on the CP as "park." In other words, its GATRI inconsistent.

We won't go into the background or the arguments made by each side (for details, see our earlier post, and the amicus brief we filed in support of the property owners in an earlier phase of the case in which the County lost its argument that the case wasn't ripe under Williamson County because the owners hadn't made an attempt to get the hotel zoning and the park CP consistent by seeking an amendment to the CP which would allow for residential use). Instead, we've posted the oral argument recording above for your edification.

After the Court of Appeals correctly determined that Williamson County doesn't require a takings plaintiff to seek a change in the law in order to ripen her claim, the Lucas wipeout question ended up being presented to a Maui jury, which somehow concluded that despite the plan/zone inconsistency, the Leones' have some economically viable uses remaining.

What those uses are, we can't imagine. We know the Leones can't build a home which the hotel zoning would otherwise permit. And we know the Leones can't make use of it as a park because the lot is too small (the minimum lot size in the park CP is 1 acre, and the Leone parcel is less than 1 acre). That should have been game, set, and match.

But it wasn't, and after the adverse jury decision, the property owners appealed. To explain the verdict, the County made all sorts of arguments that in our view, can't be harmonized in a way that makes any sense under the Fifth Amendment or federal court caselaw. Who knows, maybe the jury bought the County's argument the Leones could hold the property for "investment" purposes (in other words, despite it being frozen out of present uses today, in the future it might have value), despite that argument being foreclosed as a matter of Fifth Amendment law by cases like Lost Tree. Or maybe the Leones really could open a park concession or something and that is an economically beneficial use of the parcel, even though the CP says otherwise. Or maybe they could have somehow convinced the County to let them build a home, even though it is flatly prohibited by their own rules and GATRI, and that it wasn't the inconsistency which caused the County to deny the Leones' application to build. (Other neighboring homeowners eventually secured the County's ok, and even though those parcels were in different situations, the County pointed to them and argued why not the Leones as well?)

The oral argument recording (above and at the top of the post) has all of the details, and is a worthy listen for you takings junkies. The issues are all there: Williamson County, Lucas, Nollan/Dolan, nothing omitted.

November 15, 2016

Here's the final brochure for the upcoming ALI-CLE Eminent Domain and Land Valuation Conference, set for January 26-28, 2017, in San Diego.

Early registration gets you a discount (code CY009MK), as does multiple registrations from one office, so now's the time to commit to joining us for our annual gathering (the 34th Annual) of the nation's leading practitioners of eminent domain, condemnation, valuation, and takings law. There are multiple ways to register, including on line.

Like in past years, the first day has three tracks: Practice, Substantive, and Condemnation 101. The latter is a one-day course for those new to the field, or as a refresher course for those with more experience. The second day, the 101 attendees will join the advanced course, and we'll have plenary sessions in the morning, followed by Practice and Substantive tracks in the p.m. As always, attendees are free to move among the tracks, so you can tailor your Conference to your individual needs.

Check out the complete agenda. Together with our co-planning Chairs Joe Waldo, Jack Sperber, and Andrew Brigham, we think we've put together a pretty good program, focused on the biggest issues in our area of law, presented by a top-notch faculty.

And, of course, San Diego in January is a great place to have a conference.

Finally, we want to mention that it won't be all work: one of the big benefits of this Conference is the networking and social opportunities. We have sprinkled each day with the chance to get to know the faculty and other attendees, and each night has scheduled events.

Now's the time to join us for what we think is the best program in our area of law.

The opinion is, in his words, "the first reported appellate decision to rely upon the broad holding of the California Supreme Court's blockbuster 2015 affordable housing case, California Building Industry Assn. v. City of San Jose, and it boldly highlight the far reaching implications of that ruling." As Bryan writes, "it also underscores the ongoing need for the United States Supreme Court to finally address whether the heightened scrutiny of the Nollan, Dolan, and Koontz Fifth Amendment takings cases applies to legislatively imposed permit conditions."

In addressing the reasonableness inquiry, the Court demonstrated precisely why the U.S. Supreme Court should soon address this issue. Under the authority of California Building Industry Assn. v. City of San Jose, the Court correctly held that combatting the lack of affordable housing by promoting the use of available land for the development of housing that would be available to low- and moderate-income households does not violate the Takings Clause. The Court reasoned, however, that “[t]his is especially true when the regulation, like the one here, broadly applies nondiscretionary fees to a class of owners because the risk of the government extorting benefits as conditions for issuing permits to individuals is unrealized.” That dubious rationale runs headlong into the Justice Clarence Thomas’ logical conclusion, in Parking Assn. of Georgia, Inc. v. Atlanta, 515 U. S. 1116, 1117 (1995) (Thomas, J., dissenting from denial of certiorari), that the existence of a taking should not turn on the type of governmental entity responsible for the taking and that the general applicability of the ordinance should not be relevant in a takings analysis.

This is the "big one," our annual 3-day festival of all things eminent domain, property, takings, inverse condemnation, and just compensation. Truly national in scope, this is the 34th annual edition, and the one conference you must attend. Our 2016 conference in Austin was one of the best in years, and we're on the way to replicating it in 2017, with a great venue in an exciting city.

Look for the web and printed brochures to show up in your mailboxes, but in the meantime, here are some of the highlights (we'll post more in the next few days):

Relocation, relocation, relocation: we are featuring two sessions on this important and growing area of law. Our first panel will address the tension between condemnors, property owners, and tenants in securing relocation benefits, and our second will be a case study of an appeal under the Uniform Relocation Act, complete with lessons learned and traps for the unwary. Featuring a slate of experts: David Arnold (Virginia), Janet Handy Bush (Maryland), Kenneth Gindy (Texas), Brian Kunze (Virginia), Jill Gelineau (Oregon), Kelly Walsh (Washington), and Martyn Daniel (Washington).

Present and Future Highway Projects: we have several panels on issues related to present and planned highways and other transportation projects. We'll focus on the issues that arise when a highway authority plans to take property but doesn't do so immediately -- where are the lines between planning and taking in those cases? Strategies for property owners in obtaining information from the highway department under public records laws, and the role of federal funding in these and similar cases. Featuring Linde Hurst Webb (Ohio), Matthew Bryant (North Carolina), W. Andrew Gowder (South Carolina), Minming Wu (from the Federal Transit Administration (invited)), and Mark Murakami (Hawaii).

Trial and practice insights: we have several panels devoted to the latest strategies from condemnation jury trial experts: how to use experts (appraisers and others) to make your case; how to employ a jury consultant to maximize your results; winning valuation evidentiary issues before and during trial; admitting or excluding the "lowball" offer; and maximizing the property owner's testimony in the just comp phase. With Jeremy Hopkins (Virginia), Mary Nell Bennett (Louisiana), Christian Torgrimson (Georgia), Darius Dynkowski (Michigan and Ohio), Andrew Brigham (Florida), Scott Jenny (California), Justin Hodge (Texas), and Susan MacPherson (Minnesota)

Inverse and regulatory takings: It's been 25 years since the Supreme Court blockbuster Lucas -- has the sky fallen? With Dwight Merriam (Connecticut), and Luke Wake (California and DC). Where the line is between an exercise of the police power to protect the public, and a taking is something we've been trying to figure out for nearly a century since Pennsylvania Coal. David Breemer (California) and I (Hawaii) will bring you the latest.

There's a lot more, of course, Reserve your space by registering for the conference here.

Also, here are links to the cases which our Toronto colleague Shane Rayman referred to in his afternoon presentation on lessons for U.S. lawyers from Canada's law of injurious affection:

Antrim Trucking - the Supreme Court of Canada case (won by Shane) in which the court upheld injurious affection for the business damages resulting from a highway project, even for an owner whose property was not physically expropriated.

August 15, 2016

In City of Perris v. Stemper, No. S2133468 (Aug. 15, 2016), the California Supreme Court held that the judge, and not the jury, determines the validity of a dedication which a condemnor asserts it would impose to get the condemned property "for free" if the owner ever asked it to develop the property to its highest and best use. The case involves whether the city can avoid paying just compensation by showing that it would, in the future, exact from the owners the very same property which the city is condemning. The only way the city wouldn't require dedication of this property is if the owner continued to use it for agricultural purposes. The second issue which the court considered was the "project influence" rule, and whether the city's dedication requirement must be ignored in determining just compensation.

We'll have more on the opinion later once we've had a chance to do more than skim it, but for now, here's the bottom line(s):

We hold, contrary to the Court of Appeal below, that the constitutionality of a dedication requirement under Nollan and Dolan is a question for a court, not a jury. We further hold that the project effect rule generally applies, and the Porterville doctrine does not apply, when it is probable at the time a dedication requirement is put in place that the property subject to the dedication will be included in the project for which the condemnation is sought. We remand this case to the Court of Appeal with instructions to remand to the trial court for proceedings not inconsistent with this opinion.

Slip op, at 31.

Nollan-Dolan analysis is not "factually intensive" according to the court, and the California's Constitution's takings clause only requires a jury to resolve "factually intensive questions directly related to compensation to be submitted to a jury." Slip op. at 2-3. "Because the Nollan and Dolan issues are mixed questions of law and fact in which the legal issues predominate, and because the constitutionality of a dedication requirement is analytically prior to any factual dispute as to whether the condemner would actually impose the requirement, the questions belong to the court." Id. at 3.

The court's ruling on project influence looks like a win for property owners: "Thus, the Porterville doctrine applies when the evidence establishes that a dedication requirement reflects an agency original expectation that an improvement would occur as a result of development of adjacent properties in order to mitigate the impact of such development. When it later becomes clear that the properties at issue have to be condemned to undertake the mitigating improvement, the property is valued in its undeveloped state." Slip op. at 26. Here's how to apply that rule in future cases:

Thus, in a condemnation action, when a government entity makes a claim under Porterville that it would have required a dedication of some or all of the property being condemned had the property been developed, courts determining just compensation should look to whether that dedication requirement was put in place before it was probable that the property would be included in a government project. Probable inclusion in a government project means that at the time the dedication requirement was put in place, (1) the government was engaging in a ―project‖ — that is, a public work the government intended to pursue — for which it intended to acquire property by purchase or condemnation, if necessary, as opposed to a contingent plan to mitigate possible development on adjacent property through dedications; and (2) it was probable the property at issue would be included in that project. Under such circumstances, the project effect rule applies and the Porterville doctrine does not.

In this article, Dean Saxer examines the Supreme Court’s decision in Koontz v. St. Johns River Water Management District. In that land use case, the Court held that proposed local government monetary exactions from property owners to permit land development were subject to the same heightened scrutiny test as imposed physical exactions. The Court left unanswered the question of how broadly this heightened scrutiny should be applied to other monetary obligations imposed by the government. Saxer argues that “in lieu” exactions that are individually assessed as part of the permitting process should be treated differently than the impact fees that are developed through the legislative process and are applied equally to all developers without regarding to a specific project. Accordingly, Koontz’s application should be limited to “the special context of land-use exactions” rather than be extended to all regulatory monetary obligations.

Saxer begins by identifying the various levels of scrutiny applied to land use decisions and shows how these levels are designed to prevent the abuse of power, particularly when actions are exercised at the individualized level. She concludes by suggesting that exactions that result in a permanent physical occupation of real property should be subject to heightened scrutiny. However, only administrative, individualized, monetary exactions, designed to replace a physical exaction, such as the kind involved in Koontz, should be subject to heightened scrutiny to control the potential for abuse. Legislatively-determined monetary conditions such as impact fees, but not taxes, should be subject to review under state law standards, which range from a reasonableness test to more stringent tests under statutory or judicial determinations. In the absence of a state standard of review, legislatively-enacted impact fees challenged in federal court should be analyzed under the standard rational basis test for land use regulation.

While we may not agree with a lot of what she writes, we think this article is well done and worth a read. Download it here.

May 30, 2016

The dramatic moment of the day during last Thursday's California Supreme Court oral arguments in City of Perris v. Stamper, No. S213468 (which we previewed here: "Cal Supreme Court Oral Argument Preview: In Just Comp Trial, Does Jury Determine Reasonable Probability Of Exaction?"), occurred during the rebuttal arguments by the city's lawyer. The case involves whether the city can avoid paying just compensation by showing that it would, in the future, exact from the owners the very same property which the city is condemning. The only way the city wouldn't require dedication of this property is if the owner continued to use it for agricultural purposes.

Counsel for the city had opened her initial argument time with this:

May it please the court...The project effect doctrine, Your Honors, categorically does not apply to dedication. The city can validly get a piece of land for free because it is roughly proportional to the harms and the burdens that it will impose on society at the time of its development. If we can get it for free, then we don't have to pay 1.3 million dollars for it here.

She continued to repeat the phrase "get it for free" during her argument, and when she came back for rebuttal, Justice Corrigan (pictured above) seemingly had had enough. This colloquy resulted:

A: ...it was a circumstance where we would have imposed the dedication, it would have become effective at that time, whether we were ... we could have sat and waited for the property owner to come in, so that's an additional argument, but you're right in identifying the windfall. I also want to address --

JUSTICE CORRIGAN: It says here there is no possibility of windfall. And your answer is --

A: But but there is Your Honor, because if they -- they will give -- we will pay them 1.3 million dollars for this property that we should get for free because their development would impose that much burden --

JUSTICE CORRIGAN: It always bothers me when I hear you say "we should get this for free."

A: Your Honor --

JUSTICE CORRIGAN: -- because you're picking up a very --

A: Because, I --

JUSTICE CORRIGAN: -- you're picking up a very challenging position for yourself when the government comes in and says "you own it, but we should get it for free."

A: But Your Honor, the point is that that would be to offset the burdens the development of the property would generate on the society --

JUSTICE CORRIGAN: If they're applying to develop the property --

A: Thank you, Your Honor. If they don't want to -- if they want to take the stance that they have no intention of developing this property, then under the definition of highest and best use, they're limiting themselves to an agricultural use.

JUSTICE CORRIGAN: They're -- they own it. They don't have to, at your convenience, make a decision about whether or when they want to develop their property, do they? Is there a law that dictates that result?

A: Your Honor, there is a hundred years of law that would be overturned if the project effect doctrine would be applied to the Porterville doctrine. Because, as Your Honor pointed out correctly, on some level, every time that a city is constructing a road it relates back to some circulation element update -- and all the cases, if you go back, they did. And therefore -- and the statute has been clear, just because projects are related, that doesn't make it project effect.

Remember, this is a hypothetical dedication because this is all in the context of highest and best use. So the city's position is that it can take it "for free" because, hey, if the owners ever came in for permission to develop it, we'd just demand that they give us this exact same property as a condition.

There's more, of course, and you can listen to the entire argument below.

The court is presented with two big questions. First, in a just compensation trial, whether the judge or the jury determines if it is reasonably likely that the city would and could impose an exaction that would allow the city, in the words of the city's lawyer, "get for free" the property it is taking. Second, whether evidence of an exaction is admissible, or must be disregarded as a project effect.

This case is a tough read, and we don't have any firm predictions. But we will say this:

Juries are usually tasked with resolving whether something is "reasonably likely" to occur, and we don't see why that's not true here, even if the question can be phrased as one of constitutional law. The city's counsel kept reiterating that the property owners were trying to get the exaction declared unconstitutional, and that is a task for the court, not a jury. But recall that this issue arose in the course of determining whether it was reasonably likely the city would be able to exact the taken property, and not an actual challenge to the validity of any exaction. This, after all, is a hypothetical, like all highest and best use questions where there is an argument that something is reasonably likely to occur in the future, and thus the market would assign it value. The city, however, argues that it absolutely would require a dedication; the owner, on the other hand, claims that there might be several reasons why the city would not or could not do so. It might be politically unwise, the exaction might not have the required nexus and proportionality, for example.

In our view, it would make the most sense for the court to resolve the project effect issue first, because if it concludes that the potential exaction is a project effect and thus cannot be considered, it can avoid wading into the judge-or-jury question entirely.

We view the critical question regarding the project effect issue is definition of "the project." The city argues that the exaction requirement is a product of its general plan, and although related (obviously), it isn't part of the actual project for which the property is being taken. The court seemed to be trying to find where the line might be between general requirements and things which are a result of the project, and appeared to be focusing more on a rule for future cases, than resolving the present one. Whether that is some indication of how the court might rule here, we can't be sure.

Responding to those concerns, the owner argued for "but for" linkage, and a "substantial" factor type of test.

Several justices seemed concerned about the "windfall" question. That is, whether by allowing the owners to recover the full compensation by excluding evidence of the futue hypothetical exaction as a project effect, the court would be awarding them more than they are entitled to (in other words, the monetary equivalent of property free of the exaction regime). We thought the property owner's counsel had a compelling answer to this one, when he argued that there is no windfall to the owners because the city could always recapture any extras when and if the owners actually came in with a development proposal in the future. If the owners never sought to develop their land, there would be no windfall either, because there's no development.

Should the court accept the city's argument, however, and if there is no future development proposed, that value would be lost to the owners forever. The danger of present undercompensation outweights any risk of future windfall.

We're eager to hear what others think about the arguments. Listen yourself to see what you think.

May 25, 2016

Tomorrow morning, Thursday, May 26, 2016, starting at 9:00 a.m., the California Supreme Court will be hearing oral arguments in an eminent domain case that sits at the intersection of jury determinations of just compensation, and the Nollan/Dolan unconstitutional conditions issue.

The court is now live-streaming video of oral arguments, so you can follow along in real time. We'll post the link when it goes live at the court's web site.

Programming note: the argument is second on the 9:00 calendar, which means that the case will most likely be called some time after 10:00 a.m., after the first case is done.

In City of Perris v. Stamper, No. E054495 (Cal. App. Aug. 9, 2013), the Court of Appeal held that in a condemnation action, "issues surrounding the dedication requirement are essential to the determination of 'just compensation' and therefore must be "ascertained by a jury.'" Slip op. at 1.

The city condemned a portion of Stamper's industrially-zoned vacant land in order to realign and widen an adjacent road. Its deposit was based on the use of the land for agricultural purposes. But wait you say, the land was zoned industrial and even though it was vacant, when calculating compensation, land is valued at its highest and best use. The City asserted that it could appraise the land at a use even lower than its present zoning because it would not approve any development plan for the property unless the owners first "donated" the property to the City. So either we'd get it for free as a condition of development, or we could require the property owner to leave it vacant. As we noted in our post of the court of appeal decision:

Just so we get this right: we're taking part your property, but since we would not not allow you to build on the rest of your property unless you donated to us the property we want to take from you, we get the property we want to take from you essentially for free.

That theory has found some traction in California's intermediate appellate courts. Seeslip op. at 8-14. And ultimately, the court accepted the viability of the theory with the question being whether a judge or a jury should make the determination whether there was a reasonable probability that the City would condition Stamper's use on the dedication, and if so, whether the dedication passed the Nollan/Dolan nexus and rough proportionality requirements. The court of appeal came down on the side of the jury, which prompted the City to ask the California Supreme Court to agree to review the case. It did, and the Opening Brief presents the following Questions Presented:

1. Is the constitutionality of an otherwise reasonably probable dedication requirement that a governmental entity claims it would have required in order to grant the property owner permission to put his or her property to a higher use a question that must be resolved by a jury pursuant to Article I, Section 19 of the California Constitution?

2. Was the dedication requirement claimed by Petitioner City of Perris a "project effect" that the eminent domain law requires to be ignored in determining just compensation?

Op. Br. at 1.

To us, the question in the case is not whether the City could impose the exaction as a matter of constitutional law, but whether it is reasonably probable that it could. And when you hear words like "reasonable" and "probability" as factors in market value, those type of questions are reserved for the jury. The right to have a jury determine compensation is expressly a constitutional right under California law, and any doubt about who makes the call should be resolved in favor of the jury and not the judge.

May 13, 2016

We thought there was a chance in a case out of San Jose, California, that the U.S. Supreme Court might take up the long-standing issue of whether legislatively-imposed exactions meet the nexus and proportionality unconstitutional conditions tests from Nollan, Dolan, and Koontz. Do those tests require an individualized determination, or is it enough that the conditions are imposed on everyone?

But the Court declined to review that case. There was a question in whether San Jose's affordable housing requirements were "exactions," because the California Supreme Court disposed of the case by concluding that the regulations were mere run-of-the-mill zoning ordinances, and thus not subject at all to N-D-K. Thus, the heightened scrutiny required by N-D-K didn't apply.

This cert petition, recently filed, however, presents the legislatively-imposed question very clearly. In Common Sense Alliance v. Growth Management Hearings Bd., No. 72235-2-1 (Wash. App. Aug. 10, 2015), the Washington Court of Appeals held that the buffer requirements imposed via ordinance (applicable to everyone who sought a permit) were supported by the "best available science," and thus met the N-D-K standards, even though there was no individualized determination. See slip op. at 11 ("We reject ... the argument that a comprehensive study cannot support the imposition of development regulations unless it looks at a specific development proposed.").

Here are the Questions Presented by the petition:

A San Juan County, Washington, ordinance requires that every shoreline property owner applying for a development permit agree to permanently dedicate a portion of the property as a conservation area to filter pollutants from stormwater that flows from other properties and crosses the shoreline lot. This condition is based on a collection of reports that argue for a broad public need for stormwater filtration, but include no site specific analysis of the area necessary to filter water originating only on the permitted shoreline parcel.

The questions presented are:

1. Whether such a permit condition, imposed legislatively, is subject to scrutiny under the unconstitutional conditions doctrine as set out in Koontz v. St. Johns River Water Management District, 133 S. Ct. 2586 (2013); Dolan v. City of Tigard, 512 U.S. 374 (1994); and Nollan v. California Coastal Commission, 483 U.S. 825 (1987); and

2. Whether a generalized scientific study, which concludes that preserving shorelines may protect the environment but makes no individualized determination, satisfies the constitutional requirement that the government demonstrate that the permitted use will impact the shoreline before exacting property in exchange for permit approvals, pursuant to the “essential nexus” and “rough proportionality” tests as set out in Koontz, Dolan, and Nollan.

Stay tuned, of course. Follow along with the case on the Court's docket here.

May 2, 2016

Is the forced acquisition of property by the government's power of eminent domain a "purchase?" To the Virginia Supreme Court, the answer to that question is yes. Why, we're not really sure, because the court doesn't tell us why.

In City of Chesapeake v. Dominion SecurityPlus Self Storage, LLC, No. 150328 (Apr. 29, 2016), the court held that the use of the word in a subdivision plat in which the owner agreed that it "reserve for future purchase by the City" a part of its property with no compensation for any improvements on that land, meant that the owner also agreed to let the city condemn the land without paying for the improvements.

This case involved a highway widening and elevation project in southern Virginia. The current owner of the property, which operates a self-storage facility on the parcel, purchased it from the prior owners who had subdivided it so it could be used as a storage facility. After initially rejecting the prior owner's subdivision application, the city eventually conditioned its approval of a variance on the owner's agreeing to the reservation of a right of way in the frontage of the property for the future highway project. The variance included this language:

The owner and/or their heirs, assigns, lessee, grantees or successors in interest agrees to reserve for future purchase by the City the area hereby designated on the plat and shall convey same to the City by deed containing general warranty and English Covenants [of] Title. The purchase value of said area is to be based on the fair market value as of the date the City exercises its right to purchase the area designated as reserved with no compensation for any improvements placed within the area. The owners agree that it shall not make or have any claims for damage to the said improvements or damages to the residue [of] the owners’ property by reason of the said purchase.

Slip op. at 2. The storage operator purchased the land subject to these requirements.

Flash forward, and after attempts to "purchase the property and easements from Dominion failed," the city condemned. The highway project not only added two lanes, it elevated the roadway "more than 30 feet above Dominion's property." The project needed to take land and easements from Dominion within the frontage area covered by the variance, even though the expanded roadway was outside of this area:

No part of the widened Dominion Boulevard included property taken from Dominion as part of the condemnation, as the City already owned the right of way needed for the widened highway. Because of the raised elevation of the roadway, Dominion’s storage facility is no longer visible from Dominion Boulevard. In addition, Dominion no longer has direct access to Dominion Boulevard. Instead, access to Dominion’s self-storage facility is now achieved by way of an access road reached by exiting Dominion Boulevard.

Dominion objected to the variance condition as an unlawful exaction, and sought compensation for the loss of access and visibility (severance damages). The court awarded, and the city appealed.

The Virginia Supreme Court first addressed whether the exaction language regarding "purchase" by the city included a taking of the property by eminent domain. If it did, then Dominion wasn't entitled to compensation for any damage to the rest of the property due to improvements in the frontage because its predecessor in title had surrendered that right in the variance. Concluding that the variance was a binding contract, the court rejected Dominion's argument that the language only included damages foreseeable at the time the city issued the variance. Even though the court didn't challenge Dominion's argument that at that time, the project could not have been envisioned to be so grandiose, the court held that it didn't matter because there's no such limitation in the variance itself, which has very broad terms: "The owners agree that it shall not make or have any claims for damage to the said improvements or damages to the residue [of] the owners’ property by reason of the said purchase." Any claims is very broad.

The court also rejected the argument that acquisition by eminent domain was not a "purchase."

The City did offer to purchase the property. That offer was refused by Dominion. Therefore, the City proceeded to acquire the property through condemnation. In light of the fact that the City’s attempts to purchase the property were rebuffed by Dominion, we conclude that Note 7 was applicable to the City’s acquisition of the property within the reserved area by means of eminent domain.

Slip op. at 8. The court chided Dominion for "cit[ing] no authority in support of its argument," even though the court's opinion suffers from the very same defect. So we really don't know why the court concluded that eminent domain is a "purchase," other than the city tried to purchase it (a good faith attempt to purchase is a requirement under Virginia law), and, well, because the court said so. One may reasonably wonder whether the terms "purchase" and "condemnation" were meant to be interchangeable as the court concluded, since in the bona fide purchase statute, the legislature sure seemed to have treated them as separate events:

A condemnor shall not institute proceedings to condemn property until a bona fide but ineffectual effort to purchase from the owner the property sought to be condemned has been made.

April 29, 2016

Another day that we're tied up, so there won't be too much analysis. But we wanted to post this fascinating case out of the California Court of Appeal, Friends of Martin Beach v. Martin Beach 1 LLC, No. A142035 (Apr. 27, 2016).

As the caption of the case indicates, it involves beach access. Specifically, access to a Northern California beach that, despite some junky Yelp reviews, is apparently popular enough to spawn a "friends of" activist defense group. The Friends want access across private property owned by a really rich Silicon Valley guy. Before he owned it, they alleged, the owners let the public cross to get to the beach. The Silicon Valley guy, however, didn't continue that practice, and the lawsuit followed.

The owner claimed he had exceptionally good title, because the land, like much land in California, could trace title back to a Spanish or Mexican grant made while this was part of Alta California in the Zorro days. Title had been federally patented, and thus was free of the tidelands trust to which littoral property is usually subject. When the United States got California after the Mexican-American War, it promised in the resultant Treaty of Guadalupe Hidalgo to recognize and protect preexisting Spanish and Mexican land grants "inviolate." In furtherance of this promise, the U.S. constituted a land commission which after a very lengthy process issued federal patents for the properties which qualified. That is a fascinating story in itself. Generally speaking, under the Equal Footing Doctrine, when a state enters the Union the new state gets title to tidelands, except in those situations where the federal government has issued such a patent.

The Friends asserted that they could access the beach pursuant to the tidelands trust, while Silicon Valley guy asserted his was one of those patented properties. The trial court granted the owner summary judgment on both his claim to patented title (thus there was no right of access under the tidelands trust), as well as his argument that the public had not acquired any rights by virtue of the alleged prior use (public dedication).

The Court of Appeal partially agreed, affirming his land is not subject to the tidelands trust. The U.S. Supreme Court (in another fascinating California case) had concluded that the trust doesn't apply to federally patented land in California. This land was similar. However, the Court of Appeal reversed the summary judgment on the public dedication issue, concluding that there remain disputed facts. Case remanded for more.

We'll have more after we have a chance to digest the opinion in detail. In the meantime, enjoy the weekend reading.

April 5, 2016

Early next month, the California Supreme Court will hear oral arguments in two cases which we've been closely following:

Tuesday, May 3, 2016, 9:00 am - Property Reserve, Inc. v. Superior Court, No. S217738. The court is considering whether California's "entry statute" which allows a condemning agency to enter property for testing and inspection exempted the Department of Water Resources from adhering to the protections in the eminent domain code when the government physically invades property. We filed an amicus brief in that case arguing that "any non-trivial physical invasion of private property is a per se taking requiring just compensation and adherence to eminent domain procedures. The intrusions sought by DWR and ordered by the Superior Court cannot be dismissed as mere “entries.” This is not only a long-standing tenet of California constitutional law (seeJacobsen, supra, 192 Cal. at 329), it is a baseline Fifth Amendment principle, and thus a federal floor below which state law may not fall." Definitely a case to watch.

Thursday, May 5, 2016, 9:00 am - City of Perris v. Stemper, S213468. In this case, the Court of Appeal held that Nollan/Dolan issues impacting the possible uses of property is an issue for the jury to decide in the course determining valuation in eminent domain. Briefs in that case are posted here.

And if this report is correct, these may be the first arguments broadcast live from the court's San Francisco courtroom. Stay tuned (both literally and figuratively) for more on that.

March 11, 2016

The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary.

From time-to-time, and when we're in the neighborhood, we like to drop by the sites of familiar (and famous) takings and land use cases. Like Kaiser Aetna (in our own backyard), Dolan, and PruneYard. We've been there, done that.

So there we were in Central California (Ventura County to be exact), and we're driving up the coastal highway when around the bend comes the site of the Nollan case, the one where the California Coastal Commission tried to condition permission for Mr. Nollan to build a second story on his dream house on his giving the public access across the beach in front of his house ("makai," as we in Hawaii say).

So here you go, some photos of the lot, the beach, the other areas described in Justice Scalia's opinion, and the view from the road. These should give you a sense of what the case was about, and why it came out the way it did.

And yes, we snapped the beachside photos by only temporarily "physically occupying" the private beach, but we do recognize the gravity of our trespass. See 483 U.S. at 823 (We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.").

A panorama from the ocean side, with "the Cove" on the right, which shows the seawall and beach.

These effects of construction of the house, along with other area development, would cumulatively 'burden the public's ability to traverse to and along the shorefront.' Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property.

And one from the road side of the lot, showing the neighboring houses, and how the houses generally obstruct views from the road to the beach.

On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a ‘wall' of residential structures" that would prevent the public "psychologically . . . from realizing a stretch of coastline exists nearby that they have every right to visit."

Looking east from the coastal road towards the nearby hills. The main highway (U.S. 101) is behind that stand of palm trees.

The Commission argues that a permit condition that serves the same legitimate police power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house -- for example, a height limitation, a width restriction, or a ban on fences -- so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing spot on their property for passersby with whose sighting of the ocean their new house would interfere.

Space for a viewing platform, anyone?

JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that, in its absence, a person looking toward the beach from the road will see a street of residential structures, including the Nollans' new home, and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post at 849-850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach, and that a person looking from the road would not be able to see it at all.

"Lateral access"

"The Cove" (south of the lot)

Faria County Park, "a quarter-mile north of their property"

Small town.

The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that, of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property.

Bottom line: the plaintiff's takings claims (Lucas and Penn Central) are going to trial, the balance of the remaining claims (vested rights, etc.) are gone.

This case came about after a property owner -- the developer of the Aina Lea project on the Big Island -- challenged the State Land Use Commission's reclassification of Aina Lea's land, just north of the Waikoloa beach area, from urban to agriculture. The owner also challenged the imposition of an affordable housing requirement. In the words of an order by the court last year, "Plaintiff Bridge Aina Lea, LLC ('Bridge'), the owner of the parcel, claims that, in reclassifying the land, the Commission and certain commissioners violated Bridge's rights under the United States Constitution, the Hawaii Constitution, and various Hawaii laws." Order at 1-2. For more detail on the claims, see this post, "Guest Post: Federal Courts Flashback - Takings And Vested Rights Challenge To Land Use Commission."

The litigation began as two lawsuits originally filed in state court in the Third Circuit. The first was an original jurisdiction civil rights lawsuit against the State Land Use Commission which originally sought, among other things, just compensation for the taking of the right to develop its property. The other case was an administrative appeal under the Administrative Procedures Act from the LUC's decision.

The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the effect of removal, whether certain defendants are "persons" under 42 U.S.C. § 1983, whether the federal court must have abstained from addressing the federal takings claim, whether there is a state damage remedy for deprivation of constitutional rights, and zoning estoppel under Hawaii law, among others. The federal courts (District and Ninth Circuit) delayed making any decisions pending the outcome of the administrative appeal as it wound it way up through the state court appeals process.

Eventually, the Hawaii Supreme Court held the Commission was wrong when it reverted the land to its previous agricultural classification, but only because it did not comply with the requirements of state law (the Commission did not make specific findings of fact as required by statute). The court also rejected owner's state constitutional claims, and in a footnote, it arguably decided the federal constitutional claims, which had been reserved for the federal lawsuit, when it held the conditions were "valid."

The federal case, which by then was in the Ninth Circuit -- which had held off its decision pending the ruling by the Hawaii Supreme Court -- was sent back to the District Court, which in late 2015 in this order, got rid of most of the federal case. The only claims left unresolved were the property owners claim for just compensation and damages for the temporary taking of its right to develop the property, and a claim for damages for the owner's vested rights claim.

There's a lot going on in the District Court's order granting in part the State's motion for summary judgment:

The owner's Nollan/Dolan/Koontz unconstitutional condition claim is barred because the Hawaii Supreme Court already ruled on that issue in Footnote 17, when it noted that given the "broad authority [provided to the LUC under Hawaii statutes] and Bridge's representations to the LUC, the affordable housing conditions and its included deadline were valid. Bridge cites no authority that would prevent the LUC from imposing benchmarks or deadlines on development schedules." The court didn't address Nollan or Dolan in the footnote, but the owner's briefs had addressed the cases, which means "[t]he Hawaii Supreme Court, therefore, had occasion to consider Bridge's arguments regarding Nollan and Dolan, was ultimately unpersuaded, and, in characterizing the affordable housing condition as "valid," found it constitutional." Slip op. at 12.

But that leaves out the rest of the sentence, in our view: it is pretty clear to us from our reading of Footnote 17 that the Hawaii Supreme Court ruled that the LUC's imposition of the affordable housing condition was "valid" under the 'broad authority" in Haw. Rev. Stat. § 205-4(g), which "gives the LUC broad authority to impose conditions, including those necessary 'to assure substantial compliance with representations made by the petitioner.'"

To us, it's a real stretch to say that the Hawaii Supreme Court decided the constitutionality of the affordable housing condition with this language, and was only deciding the "validity" of the condition in relation to the LUC's statutory authority. Of course, even if the LUC has the authority to do something, it is another matter entirely whether it is constitutional for it to do so. Especially where the issues were raised in a separate lawsuit, and could not have been raised in an administrative appeal, since the LUC does not have the authority to determine whether its enabling statutes are constitutional. So count us as unconvinced.

The District Court also clarified that the unconstitutional conditions doctrine isn't really a takings theory, but one where the government cannot require someone to give up a constitutional right in exchange for a discretionary benefit. In the land use context, these claims look a lot like takings claims because the right that the owner is being asked to surrender is the right to just compensation. But the property owner here made actual takings claims, "based on the LUC's decision to reclassify the property in issue as agricultural," and not on the imposition of an affordable housing condition. Slip op. at 14.

Thus, the owner's claims are truly takings claims -- either a Lucas wipeout, or a Penn Central regulatory taking -- and not unconstitutional conditions claims. And since the State didn't really address these claims in its motion for summary judgment, they're going to trial.

The court also rejected the State's statute of limitations argument, which asserted that the takings claims accrued when the conditions were imposed or the land was classified. The court, however, concluded that the federal taking only ripened (under Williamson County) when the State denied compensation. And that didn't happen until the owner filed its lawsuit. So the claim ripened at the same time.

The court also held that the State of Hawaii's environmental study law, Haw. Rev. Stat. chapter 343 (our EA/EIS requirement) isn't a "background principle" of law that would preclude the owner from having a property interest in a parcel regarding which an EA/EIS has not been conducted. The State had argued that there was no taking for not allowing development because, hey, the owners failed to get an EIS, and that's the reason they couldn't build, not us.

The court concluded that the State did "not carry [its] burden, as they offer no support for their argument that '[t]he requirement of obtaining a valid EIS was a background principle of Hawaii property law.'" Slip op. at 23. The requirement to secure an EIS in not "the type of proscriptive regulation that qualifies as a background principle of state nuisance or property law under Lucas. Notable, Haw. Rev. Stat. § 343-5 is not a prohibition on land use based on principles of nuisance or property law. The statute instead merely requires that an owner seek an assessment of the proposed use's potential environmental impact. Lucas does not automatically preclude a landowner from recovering under a takings claim just because other regulations or requirements must be satisfied." Id.

Finally, the court granted summary judgment to the State on the owner's vested rights claims, which sought damages as a remedy. The court relied on a Hawaii Supreme Court decision, Allen v. City and Cnty of Honolulu, 58 Haw. 432, 571 P.2d 328 (1977), which held that the "builder's remedy" (an injunction) is the only remedy available to a landowner for a vested rights claim. As we've written before (see Arrow of Time: Vested Rights, Zoning Estoppel, and Development Agreements in Hawaii, 27 U. Haw. L. Rev. 17 (2004)), after First English, a state court cannot deny a compensation remedy if it precludes a landowner from making all beneficial use of its property, even if the prohibition is temporary. The District Court concluded that that requirement was satisfied here by the owner's viable federal constitutional takings claims. "[V]ested rights," on the other hand, "support a separate theory under state common law." Slip op.a t 26. Therefore no separate damage remedy for such claims.

So absent a settlement, there's going to be a federal court trial on Lucas and Penn Central takings claims regarding whether the State must pay compensation and damages for the temporary prohibition on the owner's use of the land.

Will we follow along? Great advocates, cutting-edge issues, and a court familiar with the law? You bet we will.

That's the case in which the California Supreme Court upheld the city's "affordable housing" requirement against a challenge which asserted that it was an exaction and thus should have been subject to the heightened scrutiny of the unconstitutional conditions doctrine of Nollan, Dolan, and Koontz. The California court disagreed, holding that because the ordinance did not require a developer to give up land, or money in lieu of land, it was a mere zoning restriction and not an "exaction," and therefore subject only to the "rational basis" test and not the heightened scrutiny applicable to exactions.

We filed an amicus brief in support of CBIA's cert petition. Our brief argued that even though the city's requirement doesn't demand land, clouding an owner's title for up to 55 years with an encumbrance that prohibits its sale at market rates is pretty much the same thing, and calls up the same anti-extortion concerns that fuel the Nollan, Dolan, andKoontz requirements.

Justice Thomas concurred in the denial of cert, noting that the issue of whether a legislative exaction is subject to the same requirements as an administrative exaction is "an important and unsettled issue under the Takings Clause." He noted that the lower courts are sharply divided, and "[t]hat division shows no sign of abating." He expressed his doubts whether there should be a difference, but concluded this petition wasn't the right one to review the issue:

Yet this case does not present an opportunity to resolve the conflict. The City raises threshold questions about the timeliness of the petition for certiorari that might preclude us from reaching the Takings Clause question. Moreover, petitioner disclaimed any reliance on Nollan and Dolan in the proceedings below. Nor did the California Supreme Court’s decision rest on the distinction (if any) between takings effectuated through administrative versus legislative action. See 61 Cal. 4th, at 461–462, 351 P. 3d, at 991–992. Given these considerations, I concur in the Court’s denial of certiorari.

In other words, this issue is far from over and it's on to the next case. San Jose's ordinance has survived, and the rule enunciated there by the California Supreme Court remains in place: when the "exaction" doesn't expressly require the turn-over of money or land, it's not an "exaction." Oh, and even though the Cal Supremes didn't base their decision on the rule, legislatively-imposed conditions will only be subject to rational basis review in California.

But when the right case presents itself, from California or elsewhere, those rules may change.

[Barista's note: what does the Dionne Warwick/Burt Bacharach song have to do with this, other than it's about San Jose? We included it because it is about an earlier time, when San Jose wasn't the heart of "Silicon Valley" and one of the most expensive housing markets in the nation. When it was filed with orchards, almond trees, and pruneyards (ah, so that's why that shopping center has that weird name). No more, and this case just reflects the changes.]

The U.S. and Hawaii flags at half-staff this morning at the Hawaii Capitol

So Justice Scalia is gone. We all knew this day had to come, eventually. But we were not prepared for it so soon.

With his opinions inNollan, Lucas, Rapanos, and Stop the Beach Renourishment, I think it is fair to say that he was a champion of private property rights, even though I am always uncomfortable when judges are called "champions" of certain causes, because they really aren't supposed to have causes. I'd imagine that Justice Scalia probably would agree that the only "cause" judges should serve is to call the law objectively as they see it. Fair enough. But even a cursory review of his property law jurisprudence tells us that his absence will leave a large hole, unlikely to be filled.

There are a lot of retrospectives on the man and his work, and we really can't do them justice. So instead, we will just link to what we think are the best, and most relevant:

February 8, 2016

Here's the latest on a takings case that is winding its way through the U.S. District Court in Honolulu. Yes, you read that right: a takings case being litigated in federal court.

Intrigued? Read on.

We've covered this case and the related state court litigation several times here before, so this isn't entirely unfamiliar ground. This is a case in which a property owner (the developer of the Aina Lea project on the Big Island, just north of the Waikoloa beach area) filed a case in Hawaii state court seeking, among other things, just compensation for the temporary taking of its right to develop its property. The case ended up in federal court because the State of Hawaii Land Use Commission waived the State's 11th Amendment immunity and removed the case from state court under federal question jurisdiction.

The litigation began as two lawsuits originating in state court in the Third Circuit (Big Island). The first was an original jurisdiction civil rights lawsuit, the other an administrative appeal (that's a writ of administrative mandate for you Californians). The State removed the civil rights lawsuit to U.S. District Court in Honolulu and promptly moved to dismiss, and this portion of the case nearly caused us to flash back to our Federal Courts class in law school, since it raised a host of procedural questions such as the effect of removal, whether certain defendants are "persons" under 42 U.S.C. § 1983, whether the federal court must have abstained from addressing the federal takings claim, whether there is a state damage remedy for deprivation of constitutional rights, and zoning estoppel under Hawaii law, among others.

Many of these issues were brought about as a result of Hawaii's unusual state-based zoning scheme, whereby all land in the four of Hawaii's five counties that exercise home rule was initially "classified" by the State into one of four classifications (urban, agricultural, rural, conservation). The four counties are allowed to zone the land within the "urban" and "agricultural" districts into the more familiar Euclidean zones that we're familiar with. What most folks would call a "rezoning" is called a "boundary amendment" or "reclassification" when dealing with the State land use designations, and the Land Use Commission is the agency that takes action, not the counties.

The cases themselves came about as a result of a reclassification of land from urban to agricultural, and, in the words of the latest federal court federal court order issued last year, "Plaintiff Bridge Aina Lea, LLC ('Bridge'), the owner of the parcel, claims that, in reclassifying the land, the Commission and certain commissioners violated Bridge's rights under the United States Constitution, the Hawaii Constitution, and various Hawaii laws." Order at 1-2. For more background on the federal action, see this post, "Guest Post: Federal Courts Flashback - Takings And Vested Rights Challenge To Land Use Commission."

Initially, the District Court stayed the federal action to allow the administrative appeal to get resolved in state court. Eventually, the Hawaii Supreme Court held the Commission was wrong when it reclassified the land to agricultural, but only because it did not comply with the requirements of state law (the Commission did not make specific findings of fact as required by statute and did not resolve the order to show cause within one calendar year), but rejected the owner's state and federal constitutional claims. The federal case, which by then was in the Ninth Circuit -- which held off its decision pending the ruling by the Hawaii Supreme Court -- was sent back to the District Court.

Last we checked in late in 2015, the U.S. District Court, in this order, had gotten rid of most of the federal case. It's a long decision (65 pages), but is full of the issues we are familiar with:

The Hawaii Supreme Court's decision in Bridge's favor rendered its federal court request for an injunction preventing the reclassification moot.

An injunction is not an available remedy for a taking -- only just compensation. That's a due process claim.

Preclusion principles bar Bridge's due process and equal protection claims. "Those issues, contained in Counts I and III, were decided by the Hawaii Supreme Court in the state administrative appeal." Order at 34-35.

Hawaii law does not allow for money damages as a remedy for equitable estoppel, only equitable (injunctive) relief. And the court already held that injunctive relief is moot (see above).

And immunity. Lots of immunity. See Order at 45-60.

You can't sue officials in their individual capacities for a taking. Order at 60-63.

After that, the only pieces left of the federal case are the takings claim seeking just compensation against the Commission and certain commissioners in their official capacities, as well as the vested rights claim for damages against the same parties.

In December, the State filed a Motion for Summary Judgment to get rid of these claims, arguing: (1) the affordable housing condition is not an "exaction" subject to Nollan/Dolan scrutiny (see, e.g., the San Josecase, in which a cert petition is now pending in the U.S. Supreme Court); (2) the plaintiffs missed the statute of limitations, and had two years from the date on which the condition was imposed to challenge it; (3) the only remedy for a state law vested rights claim is invalidating the government act and not damages; and (4) the State did not prevent the plaintiff from building, it was the lack of an EIS that prevented it (kind of a proximate or superseding cause argument). The property owner, of course, has its own view of the situation, and had responses to these arguments.

This morning, the District Court held a hearing on the State's motion for summary judgment, and we were fortunate enough to be able to pop in and observe. Deputy AG Bill Wynhoff ably argued for the State, while the property owners were represented by Bruce Voss. In our view, both advocates argued well -- zealously but also with great professionalism. (Ah, if only it could be so in all cases, no?).

The court did not issue a ruling, and took the motion under advisement/submission, stating that a ruling should be forthcoming by the end of the month. The arguments lasted for over an hour, and we won't go over all details, and will only hit some highlights:

There's more than one way to plead a takings claim, and it looks to us like the property owner did so, alleging a taking under a variety of theories.

Whether an unconstitutional conditions claim is really a takings claim, or is some kind of separate due process-ey claim, is still somewhat up in the air. Yes, the act complained of is the government making you made choices that you shouldn't be asked to make, but the definite flavor of every land-related unconstitutional conditions case is takings, takings, takings. See, e.g., Nollan, Dolan, Koontz. The Supreme Court's latest unconstitutional conditions case (Horne II) also has a takings flavor, even though it is not a case about land. But in our view, a property owner can plead and pursue both claims, separately.

Did the Hawaii Supreme Court reach out in its opinion and resolve the federal issues? According to the State, yes it did. The Supreme Court in a footnote upheld the affordable housing condition as "valid," and that means game over, and issue has been definitively litigated. We're not so sure. Seems like its dicta at best, and a case where the Hawaii Supreme Court was going out of its way to decide an issue that was not squarely before it, in order to cut off the plaintiff from pursuing it in federal court. We don't think the federal court owes the Hawaii Supreme Court any deference on this one, even if that court was acting "[i]n the interest of judicial economy" as it asserted when it reached out and decided the federal constitutional issues during the course of an administrative appeal. SeeDW Aina Lea Dev. LLC v. Land Use Comm'n, No. SCAP-13-00000091, slip op. at 70 (Haw. Nov. 24, 2014).

It's really kind of strange to see a takings case being litigated in federal court. Yes, the State removed the case from state court, as it had the power to do (even though the plaintiff could not have brought the claim originally in federal court under Williamson County). The court exhibited some understandable confusion about the nature and form of the claims which it is now considering: is this a § 1983 claim (remember, the 1983 claim has been dismissed)? Can a state be sued directly under the constitution? Is this a state law takings claim, or is this a federal Fifth Amendment claim?

Here's how we see it: the plaintiff's federal Fifth Amendment takings claims were not ripe, so it filed a state law takings claim in state court seeking just compensation. The State removing the case to federal court had two consequences: first, it dragged the state compensation claim into federal court, which then must apply state takings law to determine whether the property owner is owed just compensation under the Hawaii Constitution; second, the State waived any claim that the federal takings claim was not substantively ripe under Williamson County, even though the state has not yet denied compensation. Put another way, we think that by removing the case, the State conceded that compensation has not been provided and is not available via state procedures. Thus, both the federal and state takings claims are squarely presented, and neither requires a statute like § 1983, or its state law equivalent, to state a claim for relief, because both constitutional provisions are self-executing, and an owner may recover compensation even in the absence of enabling legislation.

If all of the above makes your eyes water, you are not alone, and if you'd rather just wait until the end of the month to read the District Court's opinion, we really wouldn't blame you.

Sidebar: we snapped the picture above -- a view of the entrance to the project site -- from the pull-out on Queen Kaahumanu Highway during our last visit to the area last month. The Google Earth view shows better the extent of the mauka development, and even some of the construction that has been undertaken.

January 30, 2016

The second day of the 2016 ALI-CLE Eminent Domain and Land Valuation conference went as well as the first. Here are some highlights:

Austin Mayor Steve Adler (pictured above), who is (was?) also an eminent domain lawyer, welcomed us to his city.

We moderated a discussion between Andy Gowder and Dana Berliner about "First Amendment for Fifth Amendment Lawyers: Free Speech, Signs, Defamation, FOIA, and RLUIPA Claims," how takings lawyers deal with these issues when they crop up in their cases.

One update from that session: at nearly the same time that we were talking about Central Radio, the case about the Norfolk, Virginia "anti-eminent domain" sign, the Fourth Circuit issued its opinion on remand from the U.S. Supreme Court. We'll have more in a full post soon, but here's the bottom line for now: no, the City can't ban the sign ("we hold that the sign ordinance challenged in the plaintiffs’ complaint is a content-based regulation that does not survive strict scrutiny"). How timely.

We also attended sessions on ethics for eminent domain lawyers (with Jamila Johnson, Joe Sherman, and Bob Neblett), Class Actions in Inverse CondemnationCases with Martin Wolf, a really great session from electrical engineer Robert Dew on Powerline Cases, Voir Dire Tips from Janet Handy and Christian Torgrimson, and how the probability of rezoning impacts valuation (with Nikelle Meade, Dwight Merriam, and Charles Ruffin). Also, three experienced eminent domain trial lawyers (Christian Torgrimson, Roy Brandys, and Dan Hannula) shared "war stories" about some mistakes they have made over their long careers, and how they recovered from them.

We ended the day with filmmaker Ted Balaker (pictured below), whom we interviewed about his soon-to-be-released movie about the Kelo case, "Little Pink House." More on that in a separate post.

Day Three, with our usual stalwarts Mike Berger and Jim Burling is ongoing right now, and we'll have more on today in another post.

Subscribe

Search

events | notices

At the 2016 Brigham-Kanner Property Rights Conference in the Hague, The Netherlands (October 19-20, 2016, I'm speaking on two panels: "Property's Role in the Fundamental Political Structure of Nations," and "Defining and Protecting Property Rights in Intangible Assets." More information here.

share

Disclaimer

This blog is not legal advice. But you knew that already. Reading this blog does not make you a client, nor are any posts or comments on this blog subject to the attorney-client privilege. For legal advice, please retain an attorney licensed in your jurisdiction.

This blog is not sponsored by the author's firm, and the views expressed by the author are just that; they are not the views of his clients, his firm or its clients, or anyone but for the author.